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Sect. VI.

Of adjourning Appeals.

The usual reason for having appeals adjourned to the Adjournments

under 9 Geo.l. sessions ensuing that at which they are lodged, is on ac

c. 7. and count of the insufficiency of notice. But an adjournment 17Geo.II.C,38, sometimes takes place under other circumstances, notwith- confined to

cases where no standing the words of 9 Geo. I. c.7. and 17 Geo. II. c. 38., reasonable no-. that the justices shall, after an adjournment to the next

tice. sessions, for want of reasonable notice, “then and there finally hear and determine the same.”

This construction seems established by express deci- Other cases of sion (1); and the practice of the court of King's Bench, in adjournment. directing courts of quarter sessions to enter appeals, and continue them by fictitious adjournments, admits them to have the like power since these statutes which they possessed before. (2)

Appeals may, therefore, be adjourned by consent of par- 1. Adjournties (3), upon assigning a sufficient reason to induce the ments by con

sent.

(1) Rex v. Stansfield, East, 16 Geo.II. An adjournment of an appeal against an order of removal. Burr, S.C. 205. An inclosure act gave the parties aggrieved a right of appeal to any quarter sessions to be holden for the county of W." within four calendar months after the cause of complaint shall have arisen;" and enacted “ that the justices at the said general quarter sessions are hereby required to have and determine the matter of every such appeal,” &c. Per Lord Ellenborough C. J. “I hold, without any doubt, that the court who are to try the appeal have an undoubted authority to adjourn it when once properly lodged, if it be necessary for the advancement or convenience of justice: and the sessions are to judge of the proper occasion for doing so. But the act of the party himself, in preferring his appeal, must be within the limited time." Rex v. Justices of Wilts. 13 East, 352.

(2) Rex v. Langley, 11 W.III. 1 Ld.Raym. 481. And as to the practice, see Rex y. Justices of Buckinghamshire, ante, 521.(1), and post.

(3) Consent of parties, given by themselves or their attornies, binds them in subjects of appeal, and prevents their setting aside in the superior court what has been done under it. See Rex v. Justices of Northampton, Cald. 30. Rex v. Natland, Burr. S.C.796.

court to allow it; such as the absence of material witness es, beyond the reach of legal process to enforce their appearance; the pauper having run away; and the like.

By justices in

The justices likewise possess a power, as inherent to dependent of

their jurisdiction, to adjourn them at discretion. Thus parties. 1. For consi- they may well adjourn an appeal upon debate, for further deration,

consideration. (1)

2. If equally So they may adjourn it where the justices are equally divided in opi- divided in opinion; and it is said, thať their being so dinion.

vided is a sufficient warrant for the clerk of the peace to enter an adjournment, and that it is his duty so to do. (2)

3. To obtain a

They may likewise adjourn it, for the purpose of subjudge's opinion. mitting a question in the case to the judge of assise. (3) Adjournment

An adjournment of a sessions is not to be to a time must not be beyond time of beyond that fixed by 2 Hen. V. c.4. for holding another next sessions. original sessions (4); but they may respite an appeal to May adjourn appeal to an an adjournment of the same sessions, and determine it adjournment. there. (5)

There must be If there are not justices enough to hold a sessions, there justices to hold a sessions to áre not enough to adjourn it legally; and every act done adjourn it.

after such adjournment is void. (6)

Unless appeal Except an appeal, therefore, is properly adjourned, the properly adjourned, the ensuing sessions have no jurisdiction to hear and determine

(1) Rex v. Stanfield, infra, (5). Rex v. Langley, ante, 535.(2).
(2) Bodmin v. Warlingen, 2 Bott, 726. Pl.815.

(3) Rex v. Hedingham, Burr. S.C.112. Rex v. Justices of Westmorland, 2 Bott, 726. Pl. 816. Rex v. Natland, Burr. S.C. 793.

(4) Rex v. Grince, 2 Bott. 723. Pl. 807.

(5) Rex v. Stansfield, Burr. S.C. 205. ante, 535.(1). Case of appeal against an order of removal. Also Rex v. Justices of Berkshire, 3 Glenb. on Elect. 132. 1 Const. 274. Pl. 288. Appeal against a poor's rate,

(6) Rex v. Westrington, 2 Bott. 725. Pl.814.

upon it (1); and if it does not appear, upon the caption of next sessions

have no juristhe order of sessions, to have been regularly respited, by diction. continuance or adjournment, the court of King's Bench B.R.will quash

their order un will quash the order of sessions as void. (2)

less adjournment appears in the caption.

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But as a neglect to enter the respite of an appeal, after Quære, wheit has been ordered, is an omission by the court or its ther B. R. will

interfere when officer, and no fault in the appellant, it seems hard if he the sessions is to be deprived of redress by an error in which he has omit to enter

the adjournno share.

ment.

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In an appeal from an order of removal, the justices were B. R. granted divided in opinion, and no adjournment took place, but an no redress

when no adentry was made by the clerk of the peace, that the appeal journment was lodged, and nothing done upon it. One of the parishes made. gave fresh notice of appeal, when the justices proceeded in it, and quashed the order. The court of King's Bench declared, that “ If the parties will not consent to quash both orders, we will consider whether we cannot send it down to have the entry of the first order amended.” They afterwards quashed the order of sessions, because made without adjournment; but no opinion was given. (3)

But in another case, where doubts arose on the hearing But in another of an appeal at the Christmas sessions, and there was a re- similar omisference to the opinion of the judges who should come the sion, they next Northern circuit. The judges came after the ensuing seemed inclinMidsummer sessions, but nothing further had been done mandamus to at the Christmas sessions, i.e. the appeal was not adjourned. enter and hear

the appeal. The parties producing different states of the case at the assises, the judges did nothing. A mandamus was moved for to the justices, to proceed to hear and determine this

(1) Rex v. Hedingham, Sible, Burr. S.C.112. Rex v. Polsted, 2 Str. 1262. Rex v. West Torrington. Burr. S.C.295. Bodmin v. Warlingen, ante, 536. (2).

(2) Ut supra, n. (1). As to the necessity of entering continuances in the caption of the order, see post.

(3) Bodmin v. Warlingen, ante, 536, (2).

appeal. The court inclined to grant the mandamus, if the
justices would not proceed, but enlarged the rule for fur-
ther consideration. (1)

Mandamus to Lastly, where an appeal against an order of removal was
hear where ad
journment in- regularly lodged at the Michaelmas sessions, 1767, at Pet-
advertent. worth, and the justices, upon hearing the cause, conceiving

a doubt, ordered a special case to be made for the opinion
of the court of King's Bench. The counsel withdrew in
order to settle the case, but before they had come to any
agreement, the sessions was inadvertently adjourned, and
this cause was neither retained nor ended. Upon these
facts an application was made to the court of King's Bench
for a mandamus, to compel the justices to proceed in the
appeal. By the court. When the justices entertain a
doubt, they may, without the consent of the parties, order
a special case to be made. When the justices say, as they
did here, that a special case shall be made, they virtually
say, that the cause shall be adjourned over till a case
is made; and, therefore, the want of an adjournment, or a
respite, is merely the omission of the clerk, and may at any
time be supplied. Let a mandamus go immediately, unless
the respondents will consent to a case. (2)

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(1) Rex v. Justices of Westmorland, 29Geo. II. 2 Bott, 726. Pl. 816.

(2) Rex v. Justices of Sussex, 2 Bott. 745. Pl. 833. But that a subsequent sessions have

power to grant ase if it has not been granted at the sessions which hears the appeal, see post, 549.(4) & 558.(4)

1

Sect. VII.

Of hearing Appeals.

The form of proceeding upon the hearing of appeals, is Practice of regulated by the practice of each particular court of sessions. sessions. It usually differs but little in the case of orders of removal, or poor's rates,

Appeals are heard in the order in which they are entered Order of hearwith the clerk of the peace, unless for some special reason ing appeals. submitted to the court. The first step in all cases, after an appeal is called on, is, that the appellant shall

prove

his notice, unless it is admitted.

Where the appeal is against an order of removal, the Of producing parish officers should produce the original order, if it has the order and

pauper. been served upon them. (1) They should also have the pauper present, if he has been delivered to them, or be able to shew that his absence is not through their fault or contrivance. (2)

(1) If only a copy of the order is served, the appellant should serve the removing parish with notice to produce the order at the hearing, and the justice to return that which is in his possession. Where the parish, by which the removal is made, wants to make use of the order in evidence, they should serve a notice to produce the original upon the officers of the parish removed to; and it is the safest way to serve it upon the pauper also, after which a copy may be read at the hearing of the appeal, and the pauper if he has made one, may prove it. Rex v. Kirkby Stephen, Burr.S.C.664. See ante, Vol. I. 604.

(2) It is usual to serve the appellants with notice to produce him. But quære whether it is not the safest practice to subpæna paupers as witnesses, where they are to be used as such ?

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